IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE

AT JACKSON

April 8, 2008 Session

CHARLES E. JONES v. STATE OF TENNESSEE

Direct Appeal from the Criminal Court for Shelby County

No. P-26528 Lee V. Coffee, Judge

No. W2007-01086-CCA-R3-PC - Filed October 6, 2008

The petitioner, Charles E. Jones, was found guilty by a Shelby County Criminal Court Jury of

premeditated first degree murder, and he received a sentence of life imprisonment. Subsequently,

he filed a petition for post-conviction relief, alleging that his trial counsel was ineffective. The postconviction court denied the petition, finding that the petitioner failed to prove his allegations by clear

and convincing evidence. The petitioner now appeals this ruling. Upon review of the record and

the parties’ briefs, we affirm the judgment of the post-conviction court. 

Tenn. R. App. P. 3 Appeal as of Right; Judgment of the Criminal Court is Affirmed.

NORMA MCGEE OGLE,J., delivered the opinion of the court, in which JOHN EVERETT WILLIAMS and

J.C. MCLIN, JJ., joined.

Autumn B. Chastain, Memphis, Tennessee, for the appellant, Charles E. Jones. 

Robert E. Cooper, Jr., Attorney General and Reporter; David H. Findley, Assistant Attorney General;

William L. Gibbons, District Attorney General; and Carrie Shelton and Kirby May, Assistant District

Attorneys General, for the appellee, State of Tennessee.

OPINION

I. Factual Background

On direct appeal, this court summarized the proof adduced at trial as follows:

On May 29, 1998, Officer Jeff Dennison of the Memphis

Police Department was on patrol when he was flagged down by

Hubert Sturdivant. Sturdivant advised Officer Dennison that there

was a dead body in Sturdivant’s house at 1357 Taylor Street in
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Memphis. Officer Dennison immediately radioed for assistance and

was followed to the scene by Officer Stephen Thaggard. When the

officers arrived at the scene, they saw broken glass on the steps and

porch of the house. As the officers stepped onto the front porch, the

door opened and the [petitioner] stood in the doorway.

When the [petitioner] opened the door, the officers were able

to see a dead body rolled up in carpet lying on the living room floor.

Officer Dennison immediately ordered the [petitioner] to get down,

then handcuffed him, and placed him in the back of Officer

Thaggard’s car. Both officers observed that the [petitioner] was calm

during the entire episode and never appeared to be upset. The

[petitioner] had scratches on his neck, blood splatters on his left ear,

a scratch on his check, blood splatters in his hair, and a cut on his

finger.

Officer Thaggard proceeded into the house. He testified at

trial that the victim’s bloody head was sticking out of the carpet. He

saw blood splatters in the living room, on the shades, on the floor,

“everywhere-it’s blood everywhere.” In the dining area, he saw blood

on the floor and marks on the floor that indicated that something had

been dragged across the area. Next to the victim’s body, Officer

Thaggard discovered a bucket of soapy water with a rag in it. He

noted that the water was red, as if discolored by blood. A garbage can

in the room contained broken glass and blood.

The [petitioner] was taken from the scene to the Regional

Medical Center (Med) for examination and treatment. Captain

Joseph Eldridge of the Memphis Police Department interviewed the

[petitioner] at the Med. Captain Eldridge recounted that he advised

the [petitioner] of his Miranda rights and asked the [petitioner] if he

wanted to give a statement. The [petitioner] answered affirmatively

and responded that he had killed the victim because she had

“disrespected” him and knocked his crack pipe out of his hand.

Captain Eldridge did not reduce this statement to writing.

The [petitioner] was taken from the Med to the Criminal

Justice Center. After again being advised of his rights, the

[petitioner] gave a written statement. The [petitioner] related that he

met the victim when he “went to the dope house” to buy crack

cocaine. After purchasing the crack cocaine, the [petitioner] went to

a store up the street and purchased beer and cigarettes. The victim,

who was standing in the parking lot of the store, began following the
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[petitioner]. The [petitioner] invited her to accompany him to his

house. When they arrived at his house, the two drank beer and

smoked “$50 dollars worth of crack.” After smoking crack cocaine,

the [petitioner] asked the victim to have sex with him. The victim

agreed and removed her clothes. Later, the victim became angry

when the [petitioner] refused to give her more crack cocaine.

According to the [petitioner], the victim knocked a crack pipe from

the [petitioner’s] hand and they “got to wrestling.”

The [petitioner] alleged that the victim had a box cutter,

which she began swinging at him, and cut him on the finger. The

[petitioner] insisted that he cut the victim only three times in an effort

to defend himself. He admitted that during their struggle, the victim

was unclothed. He claimed that, after being cut, the victim attempted

to jump through a window. However, there were bars on the window

and she was unable to escape. He contended that the glass from the

broken window caused most of the victim’s injuries.

[The petitioner claimed that when the struggle ended,] he

panicked and did not know what to do with the victim. He taped the

victim’s ankles and wrists together and placed a garbage bag on the

upper portion of her body. He then rolled the body inside a piece of

carpet. Attempting to clean up the blood, he placed the victim’s

clothes, his clothes, a wig, and the broken glass in a garbage bag. He

then walked out onto his porch and smoked a cigarette.

The [petitioner] admitted that he did not call for medical

assistance for the victim or call the police. He did not know the

victim’s name and explained that he had never met her before the day

of the incident.

Dr. O’Brian Cleary Smith, the Shelby County medical

examiner, testified that the autopsy of the victim revealed eighty-three

separate wounds on the victim’s body. He described approximately

sixty-eight stab and incised wounds to the head, neck, torso, and

extremities, opining that seven of the wounds were fatal. The

primary causes of death were: a stab wound through the esophagus;

a stab wound through the left jugular vein; a stab wound through the

subclavicula vein; a stab wound to the right lung; a stab wound

involving tissues of the center of the chest; a stab wound to the left

lung; and a stab wound to the back. He concluded that the wounds

were consistent with injuries from a box cutter, although he

acknowledged that some of the wounds could have been caused by
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broken glass. However, no glass was found in any of the victim’s

wounds. Additionally, Dr. Smith reported that the [petitioner’s]

blood was tested for the presence of cocaine. Dr. Smith related that

a result of .1 or .2 micrograms of cocaine per milliliter is considered

normal street level usage. The [petitioner’s] test results showed a

level of .13 micrograms per milliliter.

State v. Charles E. Jones, No. W2000-02606-CCA-R3-CD, 2001 WL 1381270, at **1-2 (Tenn.

Crim. App. at Jackson, Nov. 2, 2001). On appeal, this court affirmed the petitioner’s conviction.

Id. 

Following this court’s affirmance of his conviction, the petitioner filed a petition for postconviction relief, alleging that his trial counsel was ineffective. Namely, the petitioner alleged that

counsel failed to investigate various aspects of his case, to interview all pertinent witnesses, to file

all pertinent pretrial motions, and to properly research or pursue a voluntary intoxication defense.

At the post-conviction hearing, the petitioner’s trial counsel testified that the petitioner’s case

was originally a capital case and was assigned to the capital case attorneys in the Public Defender’s

Office. However, when the State elected not to pursue the death penalty, the case was reassigned

to trial counsel, who also worked in the public defender’s office. 

Trial counsel said that prior to trial, he had inquired into the victim’s arrest records “using

the computer system.” He conceded that he had failed to discover that the victim had prior

convictions for aggravated assault, prostitution, pedestrian solicitation, and drug possession. 

Trial counsel said that during trial preparation, he and the petitioner met frequently to discuss

the case. Trial counsel testified that the petitioner consistently maintained that the victim’s death

occurred as a result of wounds she sustained while trying to escape through his windows and from

the petitioner’s efforts to defend himself. Trial counsel opined that the version of events the

petitioner shared with him was consistent with the petitioner’s written statement to police and the

discovery materials. 

The petitioner told trial counsel that on the day of the offense, he had worked at a warehouse.

The petitioner said that he used box cutters to open boxes on the assembly line. The petitioner told

trial counsel that when he got off work, he went to a crack house to purchase crack cocaine. After

making the purchase, he went to a nearby convenience store to buy beer. The victim approached him

and asked to share his crack cocaine in exchange for sex. The petitioner said that he and the victim

went to his house where they watched a basketball game on television while drinking beer and

smoking crack. After a couple of hours, the petitioner requested sex. The victim removed her

clothes, and they had “brief sexual intercourse.” Afterward, the victim remained unclothed. The

victim asked for more crack cocaine, but the petitioner refused, saying he wanted to save the last of

his crack rocks for himself. 
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The petitioner told trial counsel that an altercation ensued after the victim knocked a crack

pipe from his hand onto the floor. The petitioner said that he pushed the victim out of the chair in

which she was sitting. The victim then approached the petitioner with a box cutter, but the petitioner

was able to get the weapon away from her. They wrestled, and the petitioner cut the victim once.

She ran to the door, but the door was deadbolted and the petitioner had the key. The victim went to

the windows on eitherside of the door, broke the glass, and attempted to get out. However, bars on

the windows prevented her escape. The petitioner told trial counsel that the victim sustained

numerous wounds from the window glass. The petitioner admitted that he “stuck” the victim with

the box cutter three times. The petitioner said that the victim died at some point after her thwarted

attempt to leave. Trial counsel stated that when police arrived at the scene of the crime, they took

pictures of the petitioner’s cuts and abrasions. Trial counsel opined that the petitioner’s injuries were

indicative of a “monumental struggle.” 

The petitioner told counsel that he got a cut on his finger while fighting with the victim.

After his arrest, police took him to the hospital, and he received stitches in his finger. Counsel said

that Officer Joseph Reed Eldridge testified at the preliminary hearing that he did not take a statement

from the petitioner at the hospital. However, on the day of trial the State revealed that it had just

learned that, while at the hospital, the petitioner told Officer Eldridge that he had killed the victim

because she had disrespected him. Trial counsel said that the State disclosed the oral statement

immediately upon discovery of its existence. Trial counsel testified that he spoke with the petitioner

and explained that they could request a continuance to consider their strategy. However, trial

counsel believed that the oral statement supported the petitioner’s version of events, namely that the

struggle began shortly after the victim disrespected the petitioner by knocking his crack pipe out of

his hands. Although the oral statement could have been used to establish a motive for the killing,

counsel said that he did not move to have the statement excluded because it was consistent with the

petitioner’s unwavering version of events. Trial counsel believed that the State’s theory at trial was

that “at some point during the infliction of the wounds . . . he premeditated to kill her.” Trial counsel

conceded that at trial he did not cross-examine Officer Eldridge about his failure to disclose the

statement at the preliminary hearing. Trial counsel surmised that when Officer Eldridge testified at

the preliminary hearing that he had not taken a statement from the petitioner at the hospital, he meant

that he had not taken a written statement from the petitioner. 

The petitioner told trial counsel that most of the victim’s wounds were caused by her attempt

to escape through the broken windows. Trial counsel noted that although the petitioner said he had

removed glass from the victim’s wounds after she fell to the floor, the petitioner had only a single

cut to his finger. Regardless, trial counsel told the petitioner that he would “deal with” that

discrepancy during trial. 

Trial counsel said that he had several discussions with Dr. Smith, the medical examiner who

testified regarding the victim’s autopsy. He specifically asked Dr. Smith if the victim’s wounds

could have been caused by the broken glass. Trial counsel did not request that the glass shards found

on the scene be tested for blood or tissue; however, Dr. Smith stated that the victim’s wounds could

have been caused by sharp glass. Trial counsel said he was surprised when Dr. Smith stated that no
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glass was recovered from the victim’s wounds and questioned Dr. Smith about it. Trial counsel

would have said that the medical examiner’s office missed the glass during the autopsy, but “that’s

a lot of wounds not to see any glass whatsoever.” Trial counsel acknowledged that he did not

interview Dr. Gunther, the medical examiner who had performed the autopsy, prior to trial because

she had moved to another state. Regardless, trial counsel stated that he felt that he had thoroughly

interviewed Dr. Smith and cross-examined him at trial. Further, Dr. Smith was Dr. Gunther’s

supervisor, and Dr. Smith was present at the autopsy. 

Trial counsel acknowledged that the petitioner, in his written statement to police, maintained

that he could not remember where his first swing of the box cutter struck the victim. Trial counsel

asked the petitioner if he was impaired by drugs or alcohol at the time of the offense, imploring him

to disclose any information that might reveal he was intoxicated and that might lead to a defense.

The petitioner consistently stated that he had a “pleasant buzz” at the time of the offense, but he did

not indicate that he was too impaired to think clearly. Trial counsel learned through his pretrial

investigation that the petitioner had previously sought treatment for his drug addiction. 

Trial counsel said that testing revealed the victim had cocaine in her system. During trial,

trial counsel asked Dr. Smith about the effects of cocaine on the body. However, he did not ask

about the effects of cocaine when coupled with alcohol. Trial counsel explained that he did not ask

the question because the petitioner had not bought much alcohol prior to the offense and because the

incident occurred two to three hours after the petitioner consumed the alcohol. 

Trial counsel stated that he had requested a jury instruction on voluntary intoxication. He

was surprised when the trial court said that the petitioner’s statement that he was “full of dope” was

insufficient to warrant the instruction. Trial counsel conceded that he could have pursued the request

for the instruction more aggressively, but he believed it could have served as a tangential defense at

best. Counsel said that the petitioner was not “knock down sloppy slobbering drunk or high on

cocaine,” and he showed the presence of mind to begin cleaning the crime scene prior to the arrival

of police. Also, Officer Eldridge said that the petitioner acted “calm and collected” when police

arrived on the scene. 

Trial counsel testified that from the beginning of his representation, the petitioner had said

that he would testify at trial. Therefore, trial counsel was “stunned” when the petitioner announced

during trial that he did not want to testify.

Memphis Police officer Joseph Reed Eldridge testified that when he arrived at the scene,

most of the glass was outside the residence, not inside. At the hospital, the petitioner told Officer

Eldridge that he killed the victim because she disrespected him. Officer Eldridge said that he

testified at the preliminary hearing that he did not take a statement from the petitioner at the hospital

because he did not consider the petitioner’s oral statement to be a formal, written statement. Officer

Eldridge said that the petitioner did not appear to be under the influence at the hospital. 

The petitioner’s mother, Barbara Jones, testified that trial counsel never interviewed her
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about the petitioner’s drug use. However, she conceded that she did not learn of the petitioner’s drug

use until after he was arrested when a drug dealer came to her house seeking payment from the

petitioner for drugs. 

Dr. O’Brian Cleary Smith testified at the post-conviction hearing that he met with both the

State and trial counsel prior to trial. During the meetings, he went over the autopsy report with them

on a page-by-page basis. The autopsy report stated that the cause of death was sixty-eight “knife”

wounds. Dr. Smith explained that the notation did not necessarily mean that the wounds were

caused by a knife; the notation simplymeant that they were “wounds of sharp force.” Dr. Smith said

that the autopsy report indicated that the victim had some defensive wounds. He explained that the

term “defensive wound” was a term of art that was developed in forensics to indicate the injuries

occurred when a person was trying to protect themselves. He said he was reluctant to use the term

in front of the jury because, as a pathologist, he was not present when the wound was inflicted and

could not definitively say how the wound occurred. Dr. Smith said that the medical examiner’s

office had been told that a box cutter was found at the scene; however, the medical examiner’s office

was not advised that some of the wounds were potentially made by glass. Dr. Smith opined that a

“defensive wound” on the victim’s hand could have been caused by holding a shard of glass. 

Dr. Smith said that no glass was detected in the victim’s wounds by either visual inspection

or low level magnification. He stated that additional testing could have been done if it had been

requested. Dr. Smith said that if glass had been found in the wounds, the glass could have been

introduced when the body was rolled in the carpet that had “crumbs of glass” on it. Further, Dr.

Smith noted that “the rug itself contained body fluids or tissue fluids such that finding that sort of

material on a small fragment of glass in association with the rug but not the body would not have

been of value.” On cross-examination, he acknowledged that at trial he testified that “the type of

pattern of injury that I would expect from shards of glass would not be consistent with producing the

cluster type effect of the wounds with the flick marks in those three areas.” Regardless, Dr. Smith

stated that the some of the wounds were consistent with being made by either a glass shard or a box

cutter; however, there was no indication that the wounds were made by glass.

Dr. Smith said that he discussed with trial counsel the effects of cocaine. Dr. Smith

explained that the use of cocaine initially creates an “excitement phase” which is characterized by

increased blood pressure and stimulation of the heart. The “excitement phase” is followed by a

“crash phase” where an individual’s personality becomes depressed or slowed. 

The petitioner testified that he consistently told trial counsel that he had cut the victim three

times with a box cutter while he was defending himself but that her death resulted from wounds she

sustained when she tried to go through the windows on either side of his door. The petitioner

acknowledged a history of drug abuse. However, he said that theft was the most serious crime he

had ever been convicted of because of his drug addiction. The petitioner told trial counsel that since

he began using crack cocaine in 1992, he had been through several drug treatment programs. The

petitioner recalled, “I also explained to [trial counsel], how can one go from theft to murder, because

I’m a drug addict. I get high. And he was like, it doesn’t matter. He didn’t want to hear anything
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that I had to say.” The petitioner maintained that trial counsel often told him that his suggestions

were not important. 

The petitioner said that the victim attacked him when he was “paranoid, spooked, and

surprised.” He stated that he fought back by taking away the box cutter and swinging at her with it,

cutting her a total of three times. The petitioner said that after the victim attempted to get through

the windows, she fell to the floor and did not respond when he asked her if she was okay. At that

point, he picked glass out of her wounds, rolled her body in a rug, and started cleaning the house.

The petitioner said he smoked more crack cocaine while he cleaned. He acknowledged that,

although the recitation of events he gave trial counsel was very detailed, he “probably forgot” to tell

trial counsel that he smoked more crack cocaine while cleaning the house. The petitioner said that

he had not changed his story to help himself; he could only remember “portions” of what happened

because of his intoxication. 

The petitioner complained that trial counsel did not put on any proof about the petitioner’s

drug addiction. The petitioner said that he had planned to testify regarding his drug use. The

petitioner maintained that trial counsel should have called the petitioner’s roommate to testify about

the petitioner’s drug use. 

The petitioner maintained that trial counsel should have more vigorously pursued an

instruction on voluntary intoxication. The petitioner acknowledged that trial counsel requested the

instruction, “but he didn’t understand exactly what he was explaining” and the request was denied.

The petitioner said he asked his appellate counsel to include the issue on appeal, but he was told the

issue would have to be raised “[o]n the next appeal.”

The petitioner said that trial counsel supplied him with copies of all discovery materials, but

he did not review the materials with the petitioner. Prior to trial, he and trial counsel discussed his

trial testimony. However, before voir dire of the jury, trial counsel pulled the petitioner aside and

advised him not to testify because the State would bring in his prior convictions and “eat [the

petitioner] alive.” The petitioner acknowledged that his prior convictions included five counts of

credit card fraud and one conviction for theft. 

The petitioner did not know until the day of trial that the State planned to introduce a

statement he allegedly made to Officer Eldridge at the hospital. The petitioner told trial counsel that

he made no such statement and asked trial counsel to object to it. The petitioner also asked trial

counsel to move to suppress his written statement because he made the statement while under the

influence of drugs and alcohol. 

The petitioner said that he asked trial counsel to do several things prior to trial, such as

investigate the crime scene and ask people in the neighborhood if the victim had assaulted anyone

else. However, the petitioner never received any indication that trial counsel performed the

requested tasks. 
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The petitioner acknowledged that during his Momon hearing, he told the trial court that he

had intended to testify but that, based upon the development of the State’s proof, he no longer

wanted to take the stand. The petitioner also acknowledged that he told the trial court he was

satisfied with the representation of trial counsel. 

The petitioner maintained that he was telling the truth at the post-conviction hearing but that

trial counsel and Officer Eldridge were not being truthful. 

The post-conviction court found that the petitioner was not a credible witness, stating that

the petitioner “exhibited a very selective memory at the evidentiary hearing.” However, the court

found that trial counsel and Officer Eldridge were credible witnesses. The post-conviction court

found that trial counsel and the petitioner made a tactical decision to focus on self-defense, not

voluntary intoxication. Additionally, the post-conviction court found that the proof indicated that

the petitioner was not intoxicated at the time of the crime or when giving his written statement to

police. 

The post-conviction court found that the State did not learn of the petitioner’s oral statement

to Officer Eldridge until the day of trial and that the State disclosed the statement as soon as it was

discovered. The court further found that trial counsel made a tactical decision not to seek a

continuance after learning of the statement. The post-conviction court noted that the jury rejected

the petitioner’s claim of self-defense, opining that the jury did so because of the strength of the

State’s case on the premeditation issue. 

Regarding the petitioner’s claim that counsel should have submitted proof about the victim’s

criminal history, the post-conviction court found that the petitioner did not know the victim prior to

the crime; therefore, the victim’s criminal history would not have been admissible to prove that the

victim was the first aggressor. The post-conviction court stated that the sole proof that the victim

had glass in her wounds came from the petitioner’s allegations. The courtstated that the lack of cuts

on the petitioner’s fingers and the medical examiner’s failure to find glass in the victim’s wounds

suggested that the petitioner’s version of events was improbable. Accordingly, the post-conviction

court found that the petitioner failed to prove by clear and convincing evidence that trial counsel was

ineffective. On appeal, the petitioner challenges this ruling. 

II. Analysis

To be successful in his claim for post-conviction relief, the petitioner must prove all factual

allegations contained in his post-conviction petition by clear and convincing evidence. See Tenn.

Code Ann. § 40-30-110(f) (2006). “‘Clear and convincing evidence means evidence in which there

is no serious or substantial doubt about the correctness of the conclusions drawn from the

evidence.’” State v. Holder, 15 S.W.3d 905, 911 (Tenn. Crim. App. 1999) (quoting Hodges v. S.C.

Toof & Co., 833 S.W.2d 896, 901 n.3 (Tenn. 1992)). Issues regarding the credibility of witnesses,

the weight and value to be accorded their testimony, and the factual questions raised by the evidence

adduced at trial are to be resolved by the post-conviction court as the trier of fact. See Henley v.
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State, 960 S.W.2d 572, 579 (Tenn. 1997). Therefore, we afford the post-conviction court’s findings

of fact the weight of a jury verdict, with such findings being conclusive on appeal absent a showing

that the evidence in the record preponderates against those findings. Id. at 578.

A claim of ineffective assistance of counsel is a mixed question of law and fact. See State

v. Burns, 6 S.W.3d 453, 461 (Tenn. 1999). We will review the post-conviction court’s findings of

fact de novo with a presumption that those findings are correct. See Fields v. State, 40 S.W.3d 450,

458 (Tenn. 2001). However, we will review the post-conviction court’s conclusions of law purely

de novo. Id. 

When a petitioner seeks post-conviction relief on the basis of ineffective assistance of

counsel, “the petitioner bears the burden of proving both that counsel’s performance was deficient

and that the deficiency prejudiced the defense.” Goad v. State, 938 S.W.2d 363, 369 (Tenn. 1996)

(citing Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984)). To establish

deficient performance, the petitioner must show that counsel’s performance was below “the range

of competence demanded of attorneys in criminal cases.” Baxter v. Rose, 523 S.W.2d 930, 936

(Tenn. 1975). To establish prejudice, the petitioner must show that “there is a reasonable probability

that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.

A reasonable probability is a probability sufficient to undermine confidence in the outcome.”

Strickland, 466 U.S. at 694, 104 S. Ct. at 2068. Moreover,

[b]ecause a petitioner must establish both prongs of the test,

a failure to prove either deficiency or prejudice provides a sufficient

basis to deny relief on the ineffective assistance claim. Indeed, a

court need not address the components in any particular order or even

address both if the [petitioner] makes an insufficient showing of one

component.

Goad, 938 S.W.2d at 370 (citing Strickland, 466 U.S. at 697, 104 S. Ct. at 2069).

On appeal, the petitioner first arguesthat histrial counsel was ineffective for “not preparing,

introducing, and arguing for an intoxication charge.” The post-conviction record reflects that trial

counsel requested a charge on voluntary intoxication, but the request was denied. At the postconviction hearing, trial counsel stated that the petitioner insisted that he had a “pleasant buzz” but

was not intoxicated. Moreover, Officer Eldridge testified that the petitioner did not seem intoxicated

when they spoke shortly after the crime. Therefore, the post-conviction court found that there was

no evidence that the petitioner was intoxicated at the time of the crime; in fact, the post-conviction

court found that the evidence strongly suggested that the petitioner was in full control of his faculties

when the crime was committed. Accordingly, the post-conviction court found that the petitioner

suffered no prejudice by trial counsel’s failure to pursue a voluntary intoxication charge. We agree

with the post-conviction court. 

Second, the petitioner contends that trial counsel failed to properly investigate and present
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the petitioner’s claim of self defense. Specifically, the petitioner notes trial counsel’s failure to

interview Dr. Gunther, his failure to have the glass collected at the scene tested for blood or tissue,

his failure to request additional testing of the wounds to check for glass, and his failure to object to

the characterization on the autopsy report of certain wounds as “defensive wounds.” 

The post-conviction court found that Dr. Smith’s testimony comported with the information

contained in the autopsy report. The record supports this finding. Further, the petitioner failed to

present the testimony of Dr. Gunther at the post-conviction hearing to demonstrate how her

testimony would have differed from Dr. Smith’s testimony. Generally, “[w]hen a petitioner contends

that trial counsel failed to discover, interview, or present witnesses in support of his defense, these

witnesses should be presented by the petitioner at the evidentiary hearing.” Black v. State, 794

S.W.2d 752, 757 (Tenn. Crim. App. 1990). We may not speculate on what benefit Dr. Gunther

might have offered to the petitioner’s case, nor may we guess as to what evidence further

investigation may have uncovered. Id. 

Regarding the petitioner’s complaint that trial counsel failed to have the glass recovered at

the scene tested for blood and tissue, we note that counsel testified that he interviewed Dr. Smith

several times and asked about the presence of glass. Dr. Smith told counsel that there was no

evidence of glass in the wounds. The post-conviction court found such a lack of glass to be “telling,”

finding the petitioner’s version of events incredulous. We conclude that the post-conviction court

did not err in finding no prejudice in this regard. 

The petitioner also complains regarding trial counsel’s failure to object to the characterization

on the autopsy report of certain wounds as “defensive wounds.” The record reflects that although

Dr. Smith testified that he preferred not to use the term “defensive wound,” he acknowledged that

the phrase is a “term of art” commonly used by medical examiners. Dr. Smith said that in the instant

case, the defensive wound on the victim’s hand could have been caused by her holding a shard of

sharp glass. However, there was no allegation, even from the petitioner, that the victim ever held

glass. Dr. Smith acknowledged that he was questioned extensively about the wounds at trial, and

he explained the wounds in detail. Accordingly, we conclude that the petitioner has failed to prove

how Dr. Smith’s use of the contested term prejudiced him.

Next, the petitioner maintains that trial counsel should have moved to suppress Officer

Eldridge’s testimony concerning the petitioner’s oral statement at the hospital. The petitioner

contends that the State’s failure to disclose the statement prior to trial was a violation of Tennessee

Rule of Criminal Procedure 16 which prejudiced the petitioner. The petitioner asserts that trial

counsel’s ineffectiveness in this regard was compounded by his failure to interview the police

witnesses prior to trial. Further, the petitioner contends that trial counsel was ineffective by failing

to move to suppress his written statement to police, contending that he was under the influence of

drugs and alcohol when the statement was made. 

Tennessee Rule of Criminal Procedure 16(a)(1)(A) provides that, upon request, the State

must allow a defendant to inspect and copy any relevant written statements made by the defendant
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which are “within the possession, custody or control of the state.” At the post-conviction hearing,

Officer Eldridge testified that he did not tell the State about the oral statement until the day of trial.

Trial counsel testified that the State disclosed the oral statement immediately upon its discovery, and

the trial court gave the defense the opportunity to consider overnight whether to seek a continuance.

Trial counsel said that, after discussing the issue with the petitioner, the defense decided not to

pursue a continuance. Trial counsel concluded that the oral statement was not inconsistent with the

petitioner’s version of events, and, after discussions with the petitioner, the petitioner said he did not

want a continuance. Pursuant to Rule 16, one of the options available to the trial court if a party fails

to comply with the Rule is to grant a continuance. We note that suppression of evidence upon a Rule

16 violation is a drastic remedy reserved for the most flagrant of violations. See State v. House, 743

S.W.2d 141, 146 (Tenn. 1987). Moreover, we note that trial counsel stated that he was unsure of any

benefit which could have been gained by a continuance. Further, trial counsel’s decision not to seek

a continuance was trial strategy which, even if questionable, we will not second-guess. See State

v. Hellard, 629 S.W.2d 4, 9 (Tenn. 1982). Therefore, we conclude that trial counsel was not

ineffective in this regard. 

Regarding the petitioner’s complaints about the failure to suppress his written statement, we

note that the petitioner admitted that during his Momon hearing he told the trial court that he

knowingly and voluntarily gave his written statement to police. Officer Eldridge testified that the

petitioner was calm and collected after the crime and that he did not appear to be under the influence

of an intoxicant at the time he gave his statement. Moreover, the petitioner repeatedly told counsel

that he was not intoxicated. Further, the post-conviction court stated that the petitioner’s postconviction testimony was not credible. Based upon this evidence, the post-conviction court found

that trial counsel was not ineffective for failing to move to suppress the written statement. We agree.

Thus, we conclude that the petitioner has failed to prove his allegations of ineffective assistance of

counsel. 

III. Conclusion

Finding no reversible error, we affirm the judgment of the post-conviction court. 

___________________________________ 

NORMA McGEE OGLE, JUDGE